AB v BB and O^rs

High Court (Family Division) 
13^th February 2013

Case n^o: FD11P02530
Hearing date: 24^th January 2013

Before (the judges sitting on the bench)

• Mrs Justice Theis 

Counsel (the barristers representing the parties)

• Ms Helen Harper, (instructed by SJ Solicitors) appeared on behalf of the father, AB (the Applicant)
• Mr Peter Lynch, (instructed by solicitors whose identity is confidential) appeared on behalf of the mother, BB (the 1^st Respondent)
• Ms Penny Logan, (instructed by Cafcass Legal ) appeared on behalf of the C, D, E, & F children (the 2^nd–5^th Respondents), through their Children’s Guardian 

Judgment

Mrs Justice Theis —

1.  This matter was listed to determine the father’s application for contact to his four children C 6 years, D 4 years, E 3 years and F 2 years.  Their mother, BB, is the 1st Respondent.  I shall hereafter refer to the parents as mother and father.

2.  The father seeks direct contact or, in the alternative, indirect contact to the children.  He also seeks a risk assessment if the court considers it has insufficient information to enable it to make a decision.  The mother does not support any contact between the children and their father and seeks the court’s permission to change their name.  The Children’s Guardian does not support any direct or indirect contact, save for possibly permitting the father to write to the children via Cafcass which Cafcass would keep and pass on to the mother, if requested by her.  The Children’s Guardian supports the mother’s application to change the children’s name.

Background

3.  The parents met in 2005 and married in 2006.

4.  Following the birth of C in 2006 there was an incident on 4^th December 2007 when the mother had to call the police.  She alleged the father had assaulted her by punching and kicking her in the abdomen when she was five months pregnant.  When the police attended at the property C was alone in the home, the father said he had gone out to look for the mother and had asked a neighbour to look after C.  The father denied the kicking or punching but accepted he slapped the mother.  He was arrested, bailed and subsequently given a police caution for assault and child cruelty in January 2008.

5.  D was born shortly afterwards in March 2008 followed by E in June 2009.  The mother alleges the father remained violent and controlling in his behaviour towards her.  This is denied by the father.

6.  At 6.30 a.m. on 21^st August 2010 the police were called to the family home as the mother alleged that the father had assaulted her and may be in possession of a knife after she had confronted him about having sex with another woman in the home.  The father was arrested and admitted in interview that they had argued and he had dragged the mother back to the bedroom and had pushed her.  He admitted banging the door when she was on the phone to the police and did make threats.  He was released on bail with a condition not to contact the mother.  He was subsequently charged with assault.  He pleaded guilty on 23^rd August and was released on bail pending sentence.  The father’s statement accepts that he contacted the mother (in breach of his bail conditions) when he was released.

7.  On 3^rd September 2010 the mother called the police at 10 p.m. stating she had run out of the house as the father had threatened to kill her.  She alleged he had stubbed out a cigarette on her forehead, scratched her on the arm causing it to bleed and punched and kicked her in the stomach.  He was arrested and denied assaulting or spitting at the mother and stated that he never touched her or asked her to withdraw her allegation to the police.  He also denied burning her forehead with a cigarette.  He was charged with assault occasioning actual bodily harm.  The father’s statement in these proceedings acknowledges that he contacted the mother following his release from the earlier offence and the background to the later incident was his anger at being shown by his solicitor the mother’s statement about the August incident.  He said he “confronted the Respondent about what she said in the statement and she told me she hadn’t said it.  I picked up a toy and began hitting her on the foot with it.  I was so shocked by the lies and terrible consequences that this could have for me.  I then told her to go downstairs and I remained upstairs to calm down.”

8.  On 17^th September 2010 the father was sentenced to 8 weeks imprisonment for the August offence.  He was released from custody in October/November, following F’s birth in September 2010.  The father last saw the children in November 2010.

9.  On 10^th January 2011 the father pleaded guilty to the September assault and was sentenced to 28 months’ imprisonment.  He completed his sentence in December 2011, but remains detained in relation to immigration matters.  The father successfully appealed the decision to deport him, which the Home Office appealed.  The hearing of that appeal took place on 26^th October 2012; the decision is still awaited.

10.  According to the father he first approached his solicitors regarding contact to his children in February 2011, although no corroborative evidence has been produced to support that.  On 14^th October 2011 he issued an application for contact and sought orders for disclosure of the children’s whereabouts.  Disclosure orders were made in January 2012.  On 19^th March 2012 a DC attended court.  He is part of the Multi-Agency Public Protection Arrangements (MAPPA) team supporting the mother and children.  By this time the mother and children had been moved to an address that was not known to the father.  The matter was transferred to the High Court and was first listed before me on 19^th July 2012.

11.  Since then I have had a number of hearings, the result of which is the children were joined as parties and are represented by Cafcass Legal (instructed by a practitioner from the High Court Team) and arrangements were put in place for the mother to be served with the father’s application and to secure legal representation.  The Children’s Guardian has prepared two reports and seen both the mother and father.  Subsequently arrangements were put in place to enable the mother to give oral evidence via video link, in circumstances that ensured her oral evidence was tested, but her location and circumstances were kept secure.  This was done with the co-operation and collaboration of all the parties.  The father, his mother and the Children’s Guardian also gave oral evidence.  Following a full day of evidence I have had the benefit of written submissions from the parties.

The Law

12.  In considering the applications before the court the court’s paramount consideration is the welfare of each of the children, having regard to the welfare check-list in section 1(3) Children Act 1989 .  I am acutely conscious of the importance for children, when their parents separate, of remaining in contact with the non-resident parent, but this has to be subject to the welfare needs of each child and the facts of each case.  I also recognise the draconian nature of the order being sought by the mother.  The court should be very slow to make such an order, unless the welfare of each of the children demands it.  The Article 8  rights of the parents and the children are clearly engaged in this case.  They can only be interfered with if it is proportionate to do so, on the facts of the particular case.

Decision

13.  In this case, having considered the extensive documentation and had the great benefit of hearing the oral evidence of the parties, I have reached the clear conclusion that there should be no direct or indirect contact between the children and the father, save for the limited indirect contact outlined in (7) below.  I have reached that conclusion for the following reasons:

1. The children are too young to express their wishes and feelings.  The father criticised the Children’s Guardian for not seeking the views of C.  However, the Children’s Guardian was clear in his oral evidence that whilst he approached the issue of whether he should speak directly to C with an open mind he concluded, once he met her, she was young for her age and anxious and, in the circumstances of this case, her views were not central to the issues before the court.  I accept the assessment the Children’s Guardian had to make on the day he saw C.  At the time he saw her she was rising 6 years.
2. The evidence demonstrates each of the children’s physical, emotional and educational needs are being met by their mother.  The relevant statutory agencies have confirmed they have no concerns about the mother’s care.  Their welfare needs demand that they continue to have this stability of care.  This was confirmed by the Children’s Guardian when he visited the mother.  Due to the mother’s fears about the father locating the children she has been assisted by the police and other agencies to ensure she and the children have secure accommodation, at a location unknown to the father.  The assessment process that has taken place to support the mother, including the MAPPA assessment, has concluded that she is justified in her fears.  The father’s position is that the mother is exaggerating these fears to get back at him and using the children against him.  In his interview with the Children’s Guardian he said the mother had no reason to be afraid of him; she knows he has “done a lot of sacrifice for her” for accepting offences that he did not commit and believes she may have been told by Social Services and the Police to say she is afraid of him.  I have carefully weighed up the emotional need each of the children have to see and/or know their father, however I am satisfied in this case that cannot be achieved without adversely affecting their overall emotional needs by putting at risk the emotional stability they have of being cared for by their mother.  The risks with direct contact, even if supervised, would be some information could be revealed.  With indirect contact it would be the impact of that communication being received on the mother, due to her fear of what the father might do.
3. The children are settled and secure in their mother’s care.  The court has to consider very carefully any step that risks undermining that security and stability, as that is likely to be detrimental to their welfare.  I am quite satisfied from the evidence I have that any form of contact by this father to the children will risk the stability and security of the mother’s care of the children.  This is based on her fear of the father discovering where she and the children are and the consequences that would flow from that.  I accept her evidence that fear is genuine.  It is based on her experience of the father, in particular the incidents that have been admitted by the father, namely the caution in 2007 and the assaults in August and September 2010.  The father’s written and oral evidence seeks to minimise his role and responsibility in these events and the effect of them on the mother and the children.  That is a consistent evidential thread that runs through this case and was observed in the criminal proceedings by the probation officer.  I do not accept his evidence that he has no wish to know where the mother and children are.  This is because there is no real acknowledgement by the father of the fear the mother has, he focuses almost entirely on the injustice to him.  In addition there is evidence that given the opportunity he will seek to track the mother down.  That is supported by the letter he wrote to his mother in July 2011 giving her various ways she could track down the mother, including giving false information to the relevant authority such as using the excuse of a sick grandmother in Nigeria, using the excuse of sending certificates to the mother.  He asks his mother to do all she can to find the mother and states, “It is easy.”  The combination of the mother’s experience of living with the father, his behaviour towards her, his minimising of that behaviour and wish to find her fully supports my conclusion that the mother genuinely fears this father, that given the opportunity he would seek to track her down and cause her harm.  This conclusion was supported by the fear observed by the Children’s Guardian when he visited the mother and what I observed in her demeanour when she gave oral evidence.  Therefore, I am satisfied that a very relevant consideration is the risk to her ability to care for the children if any contact was ordered, due to her fear of the father discovering where they live.
4. The children are very young and, apart from C, have only known being cared for by the mother.
5. The three older children have suffered harm in that they were in the home when the incidents in 2010 occurred and are likely to have witnessed or heard some of what took place.  Whilst they were very young at the time each occasion involved, at the very least, shouting and arguing between the parents as well as the assaults on the mother.  They are all at risk of future harm as it was clear the father’s attitude to what had taken place had not really changed.  This was perhaps best illustrated when the father told the Children’s Guardian that he had been told it is wrong to hit a woman.  As the Children’s Guardian observed, “Most people would not need to be told that.  They would not be at that stage of saying it is less wrong to hit her in the face than kick her [as the father did in oral evidence].  These are very basic questions of right and wrong.”  I have recognised that many of the allegations of violence have not been proven but I am satisfied the violence that was admitted, coupled with the father’s attitude to that behaviour, readily underpins the risk of future harm to these children from the father’s behaviour and attitude towards them and the mother.  As the Children’s Guardian observed, the father had “painted himself as the victim … and had no understanding of the impact on her of the offences and the power relationship.”
6. The capability of each of the parents to meet the children’s needs is, in my judgment, clear.  The mother is their primary carer and, despite the criticisms made by the father of her ability to undertake that, the evidence demonstrates that she is doing that to a high standard.  Whilst the father has not been in a position to demonstrate that he can meet the children’s needs I do not accept that historically that has been the case.  Whilst it appears that he did take C to visit relatives in Nigeria, that is countered by the way he behaved towards the mother and his attitude towards the children.  When asked what he would say to the children if he was granted contact, he would “tell them how sorry I am,” then immediately observing, “The last two years haven’t been easy for me.”  There was little evidence of any ability by the father to empathise with the children.  The probation officer refers to the father speaking about the children as “if they were his possessions;” she concluded, “After more than a year away from his children, all he could talk about in regards to his children was he has rights and how they are 50% his.”
7. I have carefully considered the range of powers available to the court.  I am satisfied that direct contact between the children and their father would not be in their interests as, even if supervised, it would risk the stability and security they have living with their mother.  This is due to the risk of things being said or information being given inadvertently during contact (even if supervised).  Also the detrimental effect on the mother’s ability to care for the children if direct contact took place, due to her fear of the father.  Turning to indirect contact the mother was compelling in her oral evidence of the description she gave of the adverse impact on her of letters or cards from the father being sent to her home, even via a third party.  In answer to questions from me she was able to consider the prospect of letters from the father to the children being sent to Cafcass, being held by Cafcass and being available for the children should she consider it was in their interests to request them.  If Cafcass were able to offer such an arrangement I can see the benefit to the children to have that opportunity available for them.  It would enable the father to write to the children in a way that can be accessed by them when it is in their interests to do so, without putting the care provided by their mother at risk.  I would not envisage this being more than twice a year.

14.  The father seeks a risk assessment by a consultant psychiatrist in relation to any risk he may pose to the children.  I have carefully considered whether the expert evidence sought by the father is “reasonably required to resolve the proceedings” (rule 25.1 Family Proceedings Rules 2010 ).  That was the applicable rule when I heard this case; it has since been amended  to restrict expert evidence to that which is “necessary to assist the court to resolve the proceedings.”  I have reached the conclusion that I do not “reasonably require” that evidence.  There is little evidence of any real change by the father and I have the benefit of the enquiries and assessment undertaken by the Children’s Guardian and of seeing the father give evidence.  His attitudes are deep rooted, the Children’s Guardian observed that “… he [the father] has a long journey to go on,” and that crucially any assessment misses the point as it would not take account of the mother’s perception and fear, her emotional state and the impact of that on the children.  I agree.  These factors, in my judgment, are critical in this case and would not change.  Following that analysis I do not consider the father has discharged the burden on him of demonstrating that this expert evidence is reasonably required to resolve the proceedings.

15.  Turning to the change of name, each of the children’s welfare is the court’s paramount consideration.  I agree with the Children’s Guardian that the “safety aspect is the most critical from the children’s point of view … indeed it is critical.”  The surname is not a common one and in the light of the father’s expressed intentions, as set out in the letter to his mother, he appears conversant with methods of trying to establish where the mother and children live.  From the children’s perspective it would be very detrimental if that was done.  Whilst acknowledging the importance of names for children’s identity, in this case the welfare considerations make clear the application should be granted and I do so.

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Orders of the court

Order accordingly.